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Alvarado v. Davis

United States District Court, S.D. Texas

April 11, 2019

Isaac Manuel Alvarado, Petitioner,
v.
Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MEMORANDUM AND RECOMMENDATION

          Peter Bray, United States Magistrate Judge

         Isaac Manuel Alvarado has filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging his conviction for possession with intent to deliver a controlled substance. (D.E. 1.) The court recommends that the petition be dismissed with prejudice as time-barred.

         On February 3, 1998, Alvarado pleaded guilty in the 209th District Court of Harris County, Texas, to possession with intent to deliver more than 400 grams of cocaine. The district court sentenced him to 45 years confinement in the Texas Department of Criminal Justice and imposed a $100 fine. (D.E. 16-3 at 37-38.)

         The court of appeals affirmed the district court's judgment. Alvarado v. State, No. 14-98-00506 (Tex. App.-Houston [14th Dist.] May 13, 1999) (D-E. 16-6 at 91-95). Alvarado did not file a petition for discretionary review in the Texas Court of Criminal Appeals.

         Alvarado filed a state application for writ of habeas corpus on April 5, 2000. (D.E. 16-6 at 7-22.) The Texas Court of Criminal Appeals denied the! application without written order on the findings of the trial court. (D.E. 16-6 at 2.) Alvarado filed three more applications: on November 30, 2004; November 30, 2008; and May 30, 2018. All three were dismissed as subsequent applications. Alvarado filed this federal habeas corpus petition on September 18, 2018.

         AEDPA sets a one-year limitations period for federal habeas petitions. See 28 U.S.C. § 2244(d). The statute provides:

(d)(i) A l-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation 1 period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or : (D) the date on which the factual predicate of the claim I or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d)(i)-(2).

         Because Alvarado challenges a state-court conviction, the limitations period began to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). Alvarado's conviction became final on June 14, 1999, when his time to file a petition for discretionary review expired. See Tex R. App. P. 68.2(a); Tex.R.App.P. 4.1(a). Absent tolling, the limitations period would expire one year later, on June 14, 2000.

         Under 28 U.S.C. § 2244(d)(2), the time during which a "properly filed application for State post-conviction or other collateral review" is pending does not count toward the one-year limitations period. A state habeas petition is "pending" for purposes of tolling under § 2244(d)(2) on the day it is filed through and including ...


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